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JURISDICTION OF COMMERCE COURT 


HEARINGS 


COMMITTEE ON THE JUDICIARY 


HOUSE OF REPRESENTATIVES 


SIXTY-SECOND CONGRESS 


SECOND SESSION 


ON 


Piet 25/31 


JULY 16, 1912 


WASHINGTON 
GOVERNMENT PRINTING OFFIOE 
1912 


CONTENTS. 





Page. 
Statement of Hon. William P. Borland, a Representative from the State of 
Missouri... 2. owl ic eee Seon myo- Rare MU OR a A ol 
Statement of Luther M. Walter, Esq., attorney at law, Rookery Building, 
Chicago, iT). .. 52.25). doy tence ot eee ee er, ee 


2 


+ 


385.13 )\ 
Mim. 33 4 


ll (- 


COMMITTEE ON THE JUDICIARY. 


House or REPRESENTATIVES, 


HENRY D. CiAyton, Alabama, Chairman. 


EpDWwIn Y. WEBB, North Carolina. JoHN W, Davis, West Virginia. 
CHARLES C. CARLIN, Virginia. DANIEL J. MCGILLICUDDY, Maine. 
WILLIAM W, RUCKER, Missouri. JACK BEALL, Texas. 

WILLIAM C, Houston, Tennessee. JOHN A. STERLING, Illinois. 

JOHN C, FLoyp, Arkansas, REUBEN O, Moon, Pennsylvania. 
ROBERT Y. THOMAS, Jr., Kentucky. Epwin W. Hiaatns, Connecticut. 
JAMES M, GRAHAM, Illinois. PAUL HOWLAND, Ohio. 

H. GARLAND DupR&, Louisiana. FRANK M, NYE, Minnesota. 
MARTIN W, LITTLETON, New York. GEORGE W. Norris, Nebraska. 
WALTER I, McCoy, New Jersey. FRANCIS H. Dopps, Michigan. 


J. J. SPEIGHT, Clerk. 
C, C. BRANNEN, Assistant Clerk. 


JURISDICTION OF COMMERCE COURT. 


Hovusr oF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Tuesday, July 16, 1912. 

The committee eis day met, Hon. Henry D. Clayton (chairman) 
presiding. 

The CHarrMan. The committee will bein order. Gentlemen of the 
committee, by invitation of your chairman Mr. Borland, the author 
of H. R. 25751, has been invited to be present to-day to be heard on 
this bill. He was also invited to bring with him certain gentlemen 
who are interested in the passage of this measure. 

The bill is in the following language: 


[H. R. 25751, Sixty-second Congress, second session.] 


A BILL Toamend an act entitled ‘‘An act to codify, revise,and amend the laws relating to the judiciary,” 
approved March third, nineteen hundred and eleven, and for other purposes. 


Be it enacted by the Senate and House of Representatives of the United States of America 
in Congress assembled, That the act of Congress entitled ‘‘An act to codify, revise, 
and amend the laws relating to the judiciary,” and so forth, approved March third, 
nineteen hundred and eleven, be, and it is hereby, amended by adding to section 
two hundred and seven thereof the following: ‘‘The court shall also have jurisdiction 
over all cases brought to correct any error of law made by the Interstate Commerce 
Commission in granting or refusing to grant relief in any proceeding before said com- 
mission.”’ 


I have here a telegram dated Kansas City, Mo., July 15, 1912, 
addressed to— 


Hon. Henry D. CLayTon, 
House of Representatives, Washington, D. C. 


On behalf of shippers of the Southwest I earnestly request your favorable considera- 
tion of Congressman Borland’s bill 25751, or some similar measure, to the end that 
shippers may have a review of some court to correct errors of law made by the Inter- 
state Commerce Commisssion now denied them under decision Supreme Court in 
Procter & Gamble case. Letter follows, 

R. A. Lone, 


3 


4 JURISDICTION OF COMMERCE COURT. 


The letter has not yet reached the committee; if it comes before 
these hearings are printed it will be incorporated in the hearings as 
a part thereof. i. : 

Section 207 of the Judicial Code of the United States, which is 
referred to in the bill now under consideration, is ‘‘An act to codify, 
revise, and amend the laws relating to the judiciary,” or the act of 
March 3, 1911, Thirty-sixth Statutes at Large, 1087. The section 
which this bill proposes to amend reads as follows: 

Sec. 207. The Commerce Court shall have the jurisdiction possessed by circuit 
courts of the United States and the judges thereof immediately prior to June 18, 1910, 
over all cases of the following kind: 

First. All cases for the enforcement, otherwise than by adjudication and collection 
of a forfeiture or penalty or by infliction of criminal punishment, of any order of the 
Interstate Commerce Commission other than for the payment of money. 

Second. Cases brought to enjoin, set aside, annul, or suspend in whole or in part any 
order of the Interstate Commerce Commission. 

Third. Such cases as by section 3 of the act entitled ‘‘An act to further regulate 
commerce with foreign nations and among the States,’’ approved February 19, 1903, 
are authorized to be maintained in a circuit court of the United States. 

Fourth. All such mandamus proceedings as under the provisions of section 20 or 
section 23 of the act entitled ‘‘An act to regulate commerce,’’ approved February 4, 
1887, as amended, are authorized to be maintained in a circuit court of the United 
States. 

Nothing contained in this chapter shall be construed as enlarging the jurisdiction now 
possessed by the circuit courts of the United States or the judges thereof that is hereby 
transferred to and vested in the Commerce Court. 

The jurisdiction of the Commerce Court over cases of the foregoing classes sha ll 
be exclusive; but this chapter shall not affect the jurisdiction possessed by any 
circuit or district court of the United States over cases or proceedings of a kind not 
within the above-enumerated classes. 


And the bill provides— 


That the act of Congress entitled ‘‘An act to codify, revise, and amend the laws 
relating to the judiciary,’’ etc., approved March 3, 1911, be, and it is hereby, 
amended by adding to section 207 thereof the following: The court shall also have 
jurisdiction over all cases brought. to correct any error of law made by the Inter- 
state Commerce Commission in granting or refusing to grant relief in any proceeding 
before said commission. 


Now, Mr. Borland, we will be glad to hear from you, and I will say 
to you and the other gentlemen that the committee is very much 
pressed for time, as you know, and I know that you and the other 
gentlemen will state your case, as you can do fully, without taking 
very much time, although I am not going to limit you. 


STATEMENT OF HON. WILLIAM P. BORLAND, A REPRESENTA- 
TIVE FROM THE STATE OF MISSOURI. 


Mr. Bortanp. I am very much obliged for that opportunity, and 
I realize the pressure of work that is on the committee. This bill was 
introduced by me within the last few days at the request of the 
shippers who have occasion to file complaints before the Interstate 
Commerce Commission. The immediate object was to correct the 
situation brought about by the ‘decision of the Supreme Court in 
what is known as the Procter & Gamble case. In that case they con- 
strued the first two clauses of section 207, and decided that the juris- 
diction of the Commerce Court to review the orders of the Interstate 
Commerce Commission extended only to what would be known as 
affirmative orders, and that where the Interstate Commerce Commis- 
sion declined to make an order, which would nearly always be the case 


JURISDICTION OF COMMERCE COURT. 5 


where they decided against the shipper, the Commerce Court had no 
jurisdiction. The situation then is, that if the Interstate Commerce 
Commission makes an order against the carrier, the carrier has a com- 
plete remedy by review; he can go before the Commerce Court in any 
form; if the order is confiscatory or if it is illegal, he has his appeal; 
but if the order of the Interstate Commerce Commission dismisses 
the complaint of the shipper, the shipper, under the decision of the 
Procter & Gamble case, has no equality of right to have that opinion 
reviewed. 

Mr. Srertinea. The United States Commerce Court held that an 
order of dismissal was an order from which a shipper could appeal. 

Mr. Bortanp. It originally held that; but the Supreme Court held 
to the contrary. 

Mr. Steriinc. The Supreme Court reversed that holding ? 

Mr. BorLanp. Yes, sit. 

_ Mr. Sreriine. Has this bill which you propose been submitted 
to the attorneys who were involved in that litigation ? 

~ Mr. Bortanp. No; not by me; but we have taken the judgment 
of Commissioner Prouty and the Interstate Commerce Commission 
on it, and we will cite the committee to that. 

Mr. Sreriine. Are they satisfied that this amendment will reach 
the point ? 

Mr. Bortanp. Yes; I am going to have that laid before the com- 
mittee by Mr. Walter. I want to call attention to the language of 
the Supreme Court, so you will have in mind what we are driving at. 
The first two clauses of section 207 are as follows: 

First. All cases for the enforcement, otherwise than by adjudication and collection 
of a forfeiture or penalty or by infliction of criminal punishment, of any order of the 
Interstate Commerce Commission other than for the payment of money. 

Second. Cases brought to enjoin, set aside, annul, or suspend, in whole or in part, 
any order cf the Interstate Commerce Commission. 

This is a positive and negative statement of this court’s power 
over the orders of the Interstate Commerce Commission—the court 
can either enforce them or it can enjoin their enforcement. The 
Supreme Court has construed the provision in the last paragraph 
above quoted to refer only to orders of the Interstate Commerce 
Commission which are affirmative in character. The language of 
the Supreme Court in the Procter & Gamble case, decided June 7, 
1912, is as follows: 

Giving to these words their natural significance, we think it follows that they confer 
jurisdiction only to entertain complaints as to affirmative orders of the commission; 
that is, they give the court the right to take cognizance when properly made of com- 
plaints concerning the legality of orders rendered by the commission and confer 
power to relieve parties in whole or in part from the duty of obedience to orders which 
are found to be illegal. No resort to exposition can add to the cogency with which the 
conclusion stated is compelled by the plain meaning of the words themselves. But 
if it be conceded, for the sake of argument, that the language of the provision is ambig- 
uous, a consideration of the context of the act will at once clarify the subject. Thus, 
the first subdivision provides for the enforcement of orders; that is, the compelling 
of the doing or abstaining from doing of acts embraced by a previous affirmative com- 
mand of the commission; and the second (the one with which we are concerned), 
dealing with the same subject from a reverse point of view, provides for the contingency 
of a complaint made to the court by one seeking to prevent the enforcement of orders 
of the commission such as are contemplated by the first paragraph. In other words, 
by the cooperation of the two paragraphs, authority is given on the one hand to enforce 
compliance with the orders of the commission, if lawful, and on the other hand power 
is conferred to stay the enforcement of an illegal order. 





6 JURISDICTION OF COMMERCE COURT. 


If, however, the complaint of a shipper is dismissed, no affirmative 
order is made, and the Supreme Court decides squarely that that kind 
of a ruling by the Interstate Commerce Commission is not reviewable 

Mr. Howxanp. That is not considered an order ? 

Mr. Bortanp. No; it does not compel anybody to do anything, 
and therefore it is not reviewable. 

Mr. Davis. Is there not some reason for it? Is it not on the theory 
that the Interstate Commerce Commission is not a court but an 
administrative body ? 

Mr. Boruanp. Yes. 

Mr. Davis. And when it acts, and acts to the prejudice of any 
person, its action may be reviewed in matters of law ? 

Mr. Boruanp. Yes. 

Mr. Davis. It can not, however, be compelled to act? 

Mr. Boruanp. No. 

Mr. Davis. But it may remain inactive, within its discretion ? 

Mr. Bortanp. Yes. Yet the purpose of the creation of the com- 
mission is to provide the shippers with that very agency, and if the 
commission is mistaken about its powers or if it erroneously decides 
about its power to hear a certain complaint, the shipper ought to have 
some means of bringing that question of law before a proper tribunal 
and give the commission some construction of its powers that will 
enable it to reach the complaint of the shipper. We do not assume, 
of course, that the Interstate Commerce Commission can be compelled 
to act where their judgment of the facts is against it, but where their 
judgment as to their legal powers is against it, then they may need, 
and they say they do need, some tribunal to decide as to their legal 
powers, before they are willing to proceed. We have properly safe- 
guarded in this bill against a review of questions of fact ; we realize that 
we should leave with the commission the decision as to all questions 
of fact. We do not care to have any review of questions of fact, 
believing that the commission is competent to decide them as a jury. 
And so this amendment seeked only to give the Commerce Court the 
power to review errors of law made by the commission, and it is so 
worded. 

We realize that the Commerce Court itself may pass out of exist- 
ence by contemplated legislation, but in that case, of course, the 
jurisdiction will be conferred upon the proper tribunal, and all of the 
jurisdiction of the Commerce Court will fall into the hands of that 
tribunal. 

Mr. Norris. Are you satisfied about that proposition ? 

Mr. Boruanp. That the jurisdiction will fall into the hands of that 
tribunal ? 

Mr. Norris. Yes. 

Mr. Bortanp. Yes; I am satisfied that if the Commerce Court is 
abolished all of its jurisdiction will fall into the hands of the proper 
tribunal. 

Mr. Norris. Suppose the bill providing for the abolishment of the 
Commerce Court is passed and goes into effect before this act is 
passed ? 

Mr. Bortanp. If the act abolishing the Commerce Court is passed 
before this act is passed, it ought to be amended either in committee 
or in the House to conform to existing law. But if this act is passed 
and subsequently the Commerce Court is abolished, I have no doubt 


JURISDICTION OF COMMERCE COURT. fs 


its jurisdiction will go to the proper tribunal. I do not think there 
will be any difficulty about that. The main point I want to impress 
upon you is that the shippers have relied upon this agency, the Inter- 
state Commerce Commission, to reach complaints of this nature, and 
they are the ones who are interested and have asked for this legisla- 
tion. ‘They would like to have the power of review. 

The CuarrMan. And this power of review ought to be in the Com- 
merce Court, if the Commerce Court is going to stand, and if not, it 
ought to be in the district courts ? 

Mr. Boruanp. Yes, sir. Now, I am going to ask Mr. Walter to 
make a brief statement of the case, as he has taken this matter up 
directly with the commission and has ascertained their views as to 
this legislation. 


STATEMENT OF MFP, LUTHER M. WALTER, 


The CHairMan. Please tell the committee your full name. 

Mr. Watter. Luther M. Walter, of Chicago. 

The Cuairman. And your occupation ? 

Mr. Water. I am an attorney and make a specialty of rate mat- 
ters. or seven years I was attorney for the Interstate Commerce 
Commission, and only two years ago went into practice. 

The CHarrMAN. We will be very glad to hear from you. 

Mr. Watrer. The sole purpose of this amendment is to give the 
Commerce Court jurisdiction to decide what the law is upon appeal by 
a shipper who has been denied relief by the commission. The effect 
of that will be that when an interpretation of the law has been finally 
had by the Superme Court the commission will apply that to the facts. 
There will be no interruption whatever in the jurisdiction of the 
commission or its power upon questions of fact; we are satisfied with 
what they do on those facts. 

I took up this matter with Chairman Prouty immediately after the 
decision in the Procter & Gamble case, and told him that our purpose 
was to seek from Congress this remedial legislation, and asked him 
if he would not communicate with both the House and the Senate. 
He wrote to Judge Adamson and also to Senator Clapp. I have not 
seen his letter to Judge Adamson, but he inclosed a copy of his letter 
to Senator Clapp. He gives his individual judgment upon that mat- 
ter, and I will read from that letter as transmitted to me: 

Under the decisions of the Supreme Court a railroad may attack our orders upon 
three grounds (a) confiscation, (6) an error of law, (c) arbitrary and unwarranted 
action. It seems to me that in some form the shipper should be given the same meas- 
ure of relief against an error of law upon the part of the commission which the railroad 
has. The commission is an administrative body. Its administrative judgment can 
not be properly reviewed by a court in any case. Its decisions often involve mixed 
conclusions of law and of fact, and I believe that ordinarily such conclusions should 
not be reviewable by court process either in favor of or against the shipper; but I 
personally feel that it is in the interest of justice, and, above all, in the interest of the 
commission, that errors of law committed by it should be corrected in the courts. It 
is not, in my judgment, a wise or a salutary thing to lodge in any tribunal arbitrary 


power beyond what is necessary, and I can see no reason why the legal mistakes of 
the Interstate Commerce Commission could not and should not be corrected. 


Now, that is the nut of the case we have. We want the same 
power in the Commerce Court, or in the district court, for that matter, 
to correct the mistakes of the commission upon the law that the car- 
rier now has, and I think that this amendment completely safeguards 


8 JURISDICTION OF COMMERCE COURT. 


the commission in determining questions of fact. That is the sole 
purpose of the statute. If there are any questions as to particular 
cases that might come up, I shall be very glad to answer them. 

Mr. Streriine. The only question in my mind was whether the 
amendment reached the point, and if the commission thinks so I am 
satisfied with it, of course. 

Mr. Watrsr. I have no doubt about it myself, and I think it is so 
recognized by those officers who have talked this over; that is, that 
this goes right to the root of the decision in the Procter & Gamble 
case. Error of law has its well-known signification and reaches cer- 
tain situations either under the Constitution or the construction of a 
statute. 
Mr. Howxanp. You only have an abstract from the opinion-of the 
Supreme Court in the Procter & Gamble case ? 

Mr. WaLTER. Yes. 

Mr. Howxanp. Give us a reference to the case. : 

Mr. Water. It was decided on June 7 last past, and I will get the 
full text of that decision and leave it with the stenographer, so it can 
be copied into the hearings if that is desired. 

Mr. Howxanp. All right. 

Mr. Watrsr. I have a copy with me. 





Said decision follows: 


[Supreme Court of the United States. No. 780.—October term, 1911. The Procter & Gamble Co., appel- 
lant, v. The United States of America, the Interstate Commerce Commission, the Cincinnati, Hamilton 
& Dayton Railway Co., et al., appellees. Appeal from the United States Commerce Court.] 


[June 7, 1912.] 


Mr. Chief Justice Wurre delivered the opinion of the court. 


Having three manufacturing plants, one at Ivorydale, Ohio, a second at Port Ivory, 
N. Y., and a third at Kansas City, Kans., in which they carried on the business of 
refining cottonseed and other oils and of manufacturing soap and other products from 
grease and oil, the Proctor & Gamble Co., to facilitate the transportation to their fac- 
tories of the substances required for their operation and of shipping out the finished 
products, became the owners of about 500 railroad tank cars. The cars were exclusively 
devoted to the business of the company in the following manner: On the property of 
the company in the yards about their factories there were railroad tracks belonging to 
the company which served for holding empty or loaded cars, the cars thus situated 
being held for storage and for movement from place to place as business required. 
At each of the factories there was also an interchange track connected with the tracks 
in the yards and with the tracks of the railroad company or companies through whom 
the business of shipping in interstate commerce to and from the factories was carried on. 
The movement of cars to the interchange tracks for outward shipment and from the 
interchange tracks when they were left there by railroad companies was at two of the 
factories carried on by the company through its own employees and motive power. At 
the other one this work was done by a railroad company, who made an independent and 
special charge for the service. The transportation of the private tank cars of the cor- 
poration by the railroad companies was governed by established rules, and the price 
paid to the railroads for transporting the commodities of the company in its private 
cars was the regular price fixed for such commodities in the established tariffs. The 
railroads, however, paid to the company for the use of its private cars a fixed sum per ~ 
mile, this payment being also stated in the regular established tariffs in compliance 
with law. <A portion of the carrier’s rule (rule 29) relating to the subject of compen- 
sation for hauling such private tank cars is in the margin.! 


~1 Rule 29. (Sec. 1.) In providing ratings in this classification for articles in tank cars the carriers whose 
tariffs are governed by this classification do not assume any obligation to furnish tank cars in cases where 
they do not own or have not made arrangements for supplying such equipment. When tank cars are 
furnished by shippers or owners, mileage at the rate of three-quarters of 1 cent per mile will be allowed for 
the use of such tank cars. loaded or empty, provided the cars are properly equipped. No mileage will 
be allowed on cars switched at terminals nor for movement of cars under empty freight-car tariffs. 


JURISDICTION OF COMMERCE COURT. 9 


In 1910 among others the railroads engaged in transporting tank cars from the plants 
of the Procter & Gamble Co. adopted a system of rules governing the payment of demur- 
rage by shippers. The provisions of these rules pertinent to this case are excerpted in 
the margin.! 

The rules in question were prepared by a committee of the National Association of 
Railroad Commissioners, composed of a representative from each State having a rail- 
road commission, and a member of the Interstate Commerce Commission, and were 
adopted in convention by the national association and were subsequently approved by 
the Interstate Commerce Commission, although putting them in force was not impera- 
tively prescribed by that body. 

The Procter & Gamble Co., dissatisfied with the regulations concerning demurrage, 
in so far as they imposed in certain respects charges upon its tank cars, filed a com- 
plaint with the Interstate Commerce Commission charging the rules to be repugnant 
to the act to regulate commerce because unjust and oppressive and because to enforce 
them would create preferences and discriminations forbidden by the act. After 
hearing, the commission made a report declaring that the rules complained of were 
in no sense in conflict with the act to regulate commerce and, on the contrary, con- 

formed to that act and tended to prevent and repress unlawful preferences and dis- 
criminations. An award of relief was therefore denied. In February, 1911, the 
Procter & Gamble Co. filed a petition in the Commerce Court of the United States, 
making defendants the United States, the Interstate Commerce Commission, and the 
railroads who had been complained of in the proceedings before the commission. 
The petition recited the facts stated above as to the character of the business of the 
petitioner, the ownership of tank cars, etc., the establishment of the rules for demurrage, 
their repugnancy to the act to regulate commerce, the injury which had resulted 
from being compelled to pay the charges for demurrage in accordance with the rules, 
the application made to the commission, and the refusal of that body to award relief. 
The conception upon which the petition was based is shown in the excerpt in the 
margin,” wherein it was also charged that the order of the commission dismissing the 
complaint as above set forth ‘‘is null and void and beyond the power of said Interstate 
Commission in that it sustains the validity of * * * said demurrage rules.”’ 

The prayer was as follows: 

‘“Wherefore complainant prays that the aforesaid order of said Interstate Commerce 
Commission made in said cause No. 3208 on November 14, 1910, be set aside and 
annulled, and that the defendant railway companies, and each of them, be enjoined 
from collecting or attempting to collect any demurrage charges upon complainant’s 
loaded tank cars after said cars have been delivered to complainant and placed upon 
tracks owned or controlled by it; and, further, that said defendant railway companies 
and each of them be required to repay to complainant herein all sums found to have 
been wrongfully collected by them, or any of them, under the rule here complained 
of, and that complainant be granted such other and further relief as it may be entitled 
to in the premises.”’ 





1 RULE I. Cars subject to rules.—Cars held for or by consignors or consignees for loading, unloading, for- 
warding directions, or for any other purpose, are subject to these demurrage rules, except as follows: 

(a) Cars loaded with live stock. 

(b) Empty cars placed for loading coal at mines or mine sidings, or coke at coke ovens. 

(c) Empty private cars stored on carrier’s or private tracks, provided such cars have not been placed or 
tendered for loading on the order of a shipper. 

Notr.—Private cars while in railroad service, whether on carrier’s or private tracks, are subject to these 
demurrage rules to the same extent as cars of railroad ownership. 

(Empty private cars are in railroad service from the time they are placed by the carriers for loading or 
tendered for loading on the orders of a shipper. Private cars under lading are in railroad service until the 
lading is removed and cars are regularly released. Cars which belong to an industry performing its own 
switching service are in railroad service from the time they are placed by the industry upon designated 
interchange tracks and thereby tendered to the carrier for movement. If such cars are subsequently 
returned empty, they are out of service when withdrawn by the industry from the interchange; if returned 
under load, railroad service is not at an end until the lading is duly removed.) 

2 Complainant avers that said order of said Interstate Commerce Commission in dismissing its complaint 
as above set forth is null and void and beyond the power of said Interstate Commerce Commission in that 
it sustains the validity of Rule I of said demurrage; that said Rule I, in so far as it provides that privately 
owned cars under lading on private tracks are in railroad service and subject to the demurrage charges 
imposed by said tariffs until the lading is removed, is unjust and unreasonable in that it deprives complain » 
ant of the right to use its said private cars upon private tracks for its own purposes without paying the 
defendant railway companies demurrage charges therefor after said private cars have been delivered to 
complainant and have actually ceased to be engaged in railroad service; that the charges exacted by the 
defendant railway companies of complainant under said provision of said rule permit said defendants to 
take complainant’s property without compensation and deprive it of its property without due process of 
law in violation of the Constitution of the United States, and particularly of Article V in amendment 
thereof, and that said provision of said rule is in violation of the said act to regulate commerce, and particu- 
larly of sections 1 and 15 thereof as amended June 29, 1906; that said defendants are now exacting such 
demurrage charges under the provisions of said rule and will continue to do so unless the said order of said 
Interstate Commerce Commission is set aside and annulled by this court and defendant railway companies 
are enjoined from enforcing the provisions of said rule. 


. 


10 - JURISDICTION OF COMMERCE COURT. 


The railroads answered the bill. The United States and the Interstate Commerce 
Commission appearing for the purpose, challenged the jurisdiction of the court to 
entertain the cause and moved to dismiss upon this general ground: ‘‘ Because the 
order of the Interstate Commerce Commission complained of directed no affirmative 
relief and the negative order of the commission dismissing the complaint affords no 
ground for an action in this court’’; and upon the following more detailed specifica- 
tions filed on behalf of the United States: 

‘‘(a) It prays that the order of the Interstate Commerce Commission be enjoined, 
when said order directed no action against any party and therefore the same is not 
subject either to enforcement or to injunction. 

‘‘(b) It prays that the defendant common carriers, who are not proper parties to 
this proceeding except on their own motion, be enjoined from collecting the demur- 
rage mentioned, when no order inhibiting the same has been made by the Interstate 
Commerce Commission, and in the absence of such an order this court has no power 
to grant such relief. 

“(c) It prays that the defendant common carriers be required to repay to complain- 
ant all sums heretofore wrongfully collected as demurrage, when this court has no 
power or jurisdiction to grant such relief, either with or without an order of the Inter- 
state Commerce Commission directing such repayment.”’ 

The court, declining at the threshold to consider the demurrers and motion to 
dismiss, postponed their consideration until the hearing on the merits. There was 
a consent by all the defendants except the United States and the Interstate Commerce 
Commission that the case be heard upon the evidence and documents introduced 
before the commission and the report of that body. The United States and the Inter- 
state Commerce Commission, however, on the overruling of its demurrer and a refusal 
to grant its motion to dismiss, elected to stand thereon and declined to plead further. 

In disposing of the case the court considered it in a twofold aspect—first, as to its 
jurisdiction and, second, as to the merits of the case. On the first subject it held (a) 
that it had jurisdiction of the cause, and that the refusal of the Interstate Commerce 
Commission to afford relief to the Procter & Gamble Co. was, for the purposes of juris- 
diction of the court, the exact equivalent of an order of the commission granting 
affirmative relief, and (b) as a corollary of this power it was further decided that there 
was jurisdiction to award pecuniary relief for demurrage if any was illegally exacted. 
On the merits, however, it was decided that the Interstate Commerce Commission 
had rightfully refused to grant relief and that there was no foundation for the conten- 
tion that the property of the company in its private tank cars was taken without due 
process of law by the demurrage regulations. On this subject it was declared that as 
the company had accepted the provisions of the published tariffs concerning the use 
of the tank cars, therefore those cars were submitted to the regulations which the 
carriers had lawfully established. In other words, the court concluded that because 
the company had availed of the proffer of the railroads to use the cars in transporta- 
tion and pay for their use a stated sum the company had acquired no right to disre- 
gard restrictions against preferences and discriminations embodied in the act to regulate 
commerce. 

The case was then brought here by the appeal of the Procter & Gamble Co. That 
company insists that the court below erred in not awarding the relief-which was asked 
and in dismissing the petition. On the other hand, the Interstate Commerce Com- 
mission and the railroads insist that the court was right in refusing relief and dis- 
missing the bill. Before we can come, if at all, to consider the merits, however, it is 
necessary to dispose of the question concerning. the jurisdiction of the court below to 
entertain the petition, because the United States insists at bar, as it did in the lower 
court, that the court erred in overruling the demurrer to the jurisdiction and refusing 
to dismiss the cause for want of jurisdiction. 

The provisions of the act to establish the Commerce Court fixing the jurisdiction of 
that court are stated in the first section of the act of June 18, 1910, now section 207 of 
the judiciary act of March 3, 1911 (36 Stat., 1148). And in view of the necessity of 
having the provisions of the section immediately in mind we reproduce them. They 
are as follows: 

‘Src. 207. The Commerce Court shall have the jurisdiction possessed by circuit 
courts of the United States and the judges thereof immediately prior to June 18, 1910, 
over all cases of the following kinds: 

‘“‘First. All cases for the enforcement, otherwise than by adjudication and col- 
lection of a forfeiture or penalty or by infliction of criminal punishment, of any order 
of the Interstate Commerce Commission other than for the payment of money. 

‘‘Second. Cases brought to enjoin, set aside, annul, or suspend in whole or in part 
any order of the Interstate Commerce Commission. 


JURISDICTION OF COMMERCE COURT, 11 


“Third. Such cases as by section 3 of the act entitled ‘An act to further regulate 
commerce with foreign nations and among the States,’ approved February 19, 1903, 
are authorized to be maintained in a circuit court of the United States. 

“Fourth. All such mandamus proceedings as under the provisions of section 20 or 
section 23 of the act entitled ‘An act to regulate commerce,’ approved February 4, 1887, 
as amended, are authorized to be maintained in a circuit court of the United States. 

“Nothing contained in this chapter shall be construed as enlarging the jurisdiction 
now possessed by the circuit courts of the United States or the judges thereof that is 
hereby transferred to and vested in the Commerce Court. 

“The jurisdiction of the Commerce Court over cases of the foregoing classes shall 
be exclusive; but this chapter shall not affect the jurisdiction possessed by any circuit 
or district court of the United States over cases or proceedings of a kind not within the 
above-enumerated classes.’’ 

The question to be decided is this: Does the authority with which the Commerce 
Court is clothed in virtue of these provisions invest that body with jurisdiction to 
redress complaints based exclusively upon the conception that the Interstate Com- 
merce Commission, in a matter submitted to its judgment and within its competency 
to consider, has mistakenly refused, upon the ground that no right to the relief claimed 
was given by the act to regulate commerce, to award the relief which was claimed at 
its hands? In other words, the important question is, Is the authority of the Commerce 
Court confined to enforcing or restraining, as the case may require, affirmative orders 
of the commission, or has it the power to exert its own judgment by originally inter- 
preting the administrative features of the act to regulate commerce and upon that 
assumption treat a refusal of the commission to grant relief as an affirmative order and 

‘accordingly pass on its correctness? 

Turning for the elucidation of the question to the jurisdictional provisions, it is 
plain that although all of the four numbered subdivisions composing the section may 
serve to throw light upon the issue for decision the solution of the question must in- 
trinsically be found in a correct interpretation of the second subdivision. We say 
this because clearly the first deals alone with cases for the enforcement of orders of 
the commission as therein described; the third deals only with cases brought under 

‘the act of February 13, 1910, which is wholly foreign to the subject here reviewed, 
since the act referred to relates only to proceedings to enjoin either discriminations 
or departures by carriers from their published rates; and the fourth refers exclusively 
to the right to mandamus conformably to section 20 or 23 of the act to regulate com- 
merce, which sections are concerned with the performance of certain duties imposed 
upon carriers by the act to regulate commerce. The words of this second subdivision 
are: ‘‘Second. Cases brought to enjoin, set aside, annul, or suspend in whole or in 
part any order of the Interstate Commerce Commission.”’ 

Giving to these words their natural significance, we think it follows that they con- 
fer jurisdiction only to entertain complaints as to affirmative orders of the commis- 
sion; that is, they give the court the right to take cognizance when properly made of 
complaints concerning the legality of orders rendered by the commission and confer 
power to relieve parties in whole or in part from the duty of obedience to orders which 
are found to be illegal. No resort to exposition can.add to the cogency with which 
the conclusion stated is compelled by the plain meaning of the words themselves. 
But if it be conceded for the sake of argument that the language of the provision is 
ambiguous, a consideration of the context of the act will at once clarify the subject. 
Thus, the first subdivision provides for the enforcement of orders—that is, the com- 
pelling of the doing or abstaining from doing of acts embraced by a previous affirmative 
command of the commission—and the second (the one with which we are concerned), 
dealing with the same subject from a reverse point of view, provides for the contin- 
gency of a complaint made to the court by one seeking to prevent the enforcement of 
orders of the commission, such as are contemplated by the first paragraph. In other 
words, by the cooperation of the two paragraphs authority is given, on the one hand, 
to enforce compliance with the orders of the commission if lawful, and, on the other 
hand, power is conferred to stay the enforcement of an illegal order. The other provi- 
sions of the act are equally convincing. Thus, section 3 (208) provides that the mere 
pendency of a suit to enjoin, set aside, annul, or suspend an order of the commission 
“shall not stay or suspend the operation of such order’’ but confers upon the court the 
power, under circumstances stated, to restrain or suspend in whole or in part the oper- 
ation of an order. The same section, moreover, causes the meaning of the provision, 
if possible, to become clearer by making a finding that irreparable injury will result 
from the operation of an order sought to be enforced, essential to the granting of an 
order or injunction restraining or suspending its enforcement. 

We might well be content to rest our conclusion upon the considerations just stated. 
In view, however, of the importance of the subject we do not do so, but shall consider 


19 JURISDICTION OF COMMERCE COURT. 


the matter in a broader aspect for the purpose of demonstrating that to give to the 
statute a meaning contrary to that which we have found results from its text and there- 
fore to recognize the existence in the court below of the power which it deemed it 
possessed would result in frustrating the legislative public policy which led to the 
adoption of the act to regulate commerce, would render impossible a resort to the 
remedies which the statute was enacted to afford, would multiply the evils which the 
act to regulate commerce was adopted to prev ent, and thus bring about disaster by 
creating confusion and conflict where clearness and unity of action was contemplated. 
It can not be disputed that the act creating the Commerce Court was intended to be 
but a part of the existing system for the regulation of interstate commerce, which was 
established by virtue of ‘the original adoption in 1887 of the act to regulate commerce, 
and which was expanded by the repeated amendments of that act which followed, 
developed in practical execution by the rulings of the body (Interstate Commerce 
Commission), upon whom was cast the administrative enforcement of the act, the 
whole elucidated and sanctioned by a long line of decisions of this court. That in 
adopting the provision concerning the Commerce Court and making it part of the 
system it was not intended to destroy the existing machinery or method of regulation 
but to cause it to be more efficient by affording a more harmonious means for securing 
the judicial enforcement of the act to regulate commerce is certain. The act creating 
the Commerce Court was entitled ‘‘An act to create the Commerce Court, and to amend 
the act entitled ‘An act to regulate commerce, * approved February 4, 1887, as hereto- 
fore amended, and for other purposes.’’ The first six sections, which called into being 
the Commerce Court and defined its powers, all demonstrate the purpose as above 
stated—that is, to adjust the powers and duties of the newly created court in such man- 


ner as to cause them to accord with the system of regulation provided by the act to 


regulate commerce as it then existed. 

What was then the existing system and the functions which the new court was 
created to perform will be conclusively shown by a brief outline of the scope and pur- 
pose of the system which arose from the enactment of the act to regulate commerce 
(act Feb. 4, 1887, ch. 104, 24 Stat. 379), and its development. By that act as origi- 
nally enacted many regulations and consequent duties were imposed upon carriers 
in the interest of the public and of shippers which did not theretofore exist, and vari- 
ous administrative safeguards were formulated, all of which, in their very essence, 
required, first, for their compulsory emforcement the exercise of official functions of 
in administrative nature, and, second, for their harmonious development an official 
unity of action which could only be brought about by a single administrative initia- 
tive and primary control. To that end the act (sec. 11) created an administrative 
body endowed with what may be in some respects qualified as quasi judicial attributes, 
to whom was confided the enforcement of those provisions of the act which essentially 
exacted unity in order that they might beneficially operate. And for the purposes 
stated to the body thus created was ‘committed the trust of enforcing the act in the 
respect stated, of determining, limited as to the subject matter to which we have 
referred, whether the provisions of the act had been violated, and, if so, of primarily 
enforcing the act by awarding appropriate reef. The statute therefore necessarily, 
while it created new rights in favor of shippers, in order to make those rights fruit- 
ful as to the subjects with which the statute dealt coming within the scope ‘of the ad- 
ministrative unity which we have mentioned, primarily made the judgment of the 
administrative body to whom the statute confided the enforcement of the act in the 
respects stated a prerequisite to aresort to the courts. In other words, as to the sub- 
jects stated the act did not give to the courts power to hear the complaint of a party 
concerning a violation of the act, but only conferred power to give effect to such com- 
plaints when, by previous submission to the commission, they had been sanctioned 
by a command of that body. 

In the long interval which intervened between 1887,when the act to regulate com- 
merce was enacted, and June 18, 1910, when the Commerce Court act was passed, we 
have learned of no instance where it was held or even seriously asserted that as to sub- 
jects which in their nature were administrative and within the competency of the 
commission to decide, there was power in a court, by an exercise of original action, to 
enforce its conceptions as to the meaning of the act to regulate commerce by dealing 
directly with the subject irrespective of any prior aflimative command or action by 
the Interstate Commerce Commission. On the contrary, by a long line of decisions, 
whereby applications to enforce orders of the commission were considered and disposed 
of, or where requests to restrain the enforcement of such orders were passed upon, it 
appears by the reasoning indulged in that it was never considered that there was power 
in the courts as an original question without previous affirmative action by the com- 
mission to deal with what might be termed in a broad sense the administrative features 
of the act to regulate commerce by determining as an original question that there had 


JURISDICTION OF COMMERCE COURT. 13 


been a compliance or noncompliance with the provisions of the act. The subject is 
illustrated and made clear by the rulings in State of Washington, ex rel. Oregon Rail- 
road & Navigation Co. v. H. A. Fairchild et al. (224 U. S. ——); Robinson v. Balto. & 
Ohio R. R. (222 U.S., 506); Southern Railway Co. v. Reid (222 U.S., 424), and Texas 
& Pacific Ry. v. Abilene Cotton Oil Co. (204 U.S., 426). The latter case especially will 
serve to point out that where the power of original action by a court without previous 
action of the commission was insisted upon, it was based upon the conception that the 
particular subject matter as to which such power was asserted was by the express terms 
of the act to regulate commerce not embraced within the subjects primarily confided 
by the act exclusively to the administrative authority of the commission. 

Originally the duty of the courts to determine whether an order of the commission 
should or not be enforced carried with it the obligation to consider both the facts and 
the law. Butit had come to pass prior to the passage of the act creating the Commerce 
Court that in considering the subject of orders of the commission, for the purpose of en- 
forcing or restraining their enforcement, the courts were confined by statutory opera- 
tion to determining whether there had been violations of the Constitution, a want of 
conformity to statutory authority, or of ascertaining whether power had been so arbi- 
trarily exercised as virtually to transcend the authority conferred although it may be 
not technically doing so. (Int. Com. Comm. v. Union Pacific R. R., 222 U.S8., 541, 
547; Int. Com. Comm. v. Ill. Cent. R. R., 215 U.S., 452.) So also at the time the law 
creating the Commerce Court was passed, suits to compel obedience to orders of the 
commission or to restrain an enforcement of such orders were required to be brought 
in the Circuit Court of the United States in the district where a carrier or one or two 
or more carriers to whom the order was directed had its principal operating office. 

In view of the provisions of the act to regulate commerce just referred to as originally 
enacted, of the legislative evolution of that act, its uniform practical enforcement and 
the constant judicial interpretation which we have thus briefly indicated, it is impos- 
sible, we think, in reason, to give to the act creating the Commerce Court the meaning 
affixed to it by the court below,-since to do so would be virtually to overthrow the entire 
system which had arisen from the adoption and enforcement of the act to regulate com- 
merce. First, because as the previous ascertainment by the commission on complaint 
made to it as to whether violations of the act had been committed, with reference to 
the subjects as to which previous action was required, was an essential prerequisite 
to a right to complain in a court, the interpretation given below would, by destroying 
the necessity for the prerequisite, action of the commission, operate to create a vast 
body of rights which had no existence at the time the Commerce Court act was passed. 
Second, because the recognition of a right in a court to assert the power now claimed 
would of necessity amount to a substitution of the court for the commission or at all 
events would be to create a divided authority on a matter where from the beginning 
primary singleness of action and unity was deemed to be imperative. Third, because 
the result of the interpretation would be to bring about the contradiction and the con- 
fusion which it had been the inflexible purpose of the lawmaker from the beginning 
to guard against, an interpretation which would seemingly create rights hitherto non- 
existent and yet at once proceed to destroy such rights by bringing about a confusion 
which would render the rights which the act creates practically valueless. Indeed, 
these inevitable results of the interpretation given by the court below to the act 
would necessarily amount to declaring that Congress in seeking to unify and perfect 
the administrative machinery of the act to regulate commerce and to make more 
beneficial its operation had overthrown the whole fabric of the system as previously 
existing. 

The demonstration of the error of the construction adopted below is so additionally 
made manifest by a consideration of the general structure and the text of the act creat- 
ing the Commerce Court that, in connection with the legislative history which we have. 
previously stated, we advert to that point of view: 

A. The first section of the act wherein is recited the jurisdiction of the Commerce 
Court which we have previously commented upon makes clear that the purpose was 
not to create a court with new and strange powers destructive of the previous well- 
established administrative authority of the Interstate Commerce Commission and in 
conflict with the general jurisdiction vested in the courts of the United States, but 
only to give to the new court the special jurisdiction then possessed by the courts of the 
United States for the enforcement of orders made by the’ commission, and thus to 
unify the exertion of judicial power with reference to the enforcement of the orders of 
the commission. The opening words of the section which make this result clear are as. 
follows: It (the Commerce Court) shall ‘‘have the jurisdiction now possessed by circuit 
courts of the United States and the judges thereof over all cases of the following 
BIGGS) in es 

B. Because the enumeration as to the subject matters of jurisdiction conferred which 
follows the words just quoted, which enumeration we have previously reproduced and 


14 JURISDICTION OF COMMERCE COURT. 


commented upon, conforms to the existing law and evidently assumes its continued 
operation. 

©. Because the sedulous effort of Congress while creating the new machinery not to 
destroy the existing system finds expression in a two-fold way: (1) by the declaration 
that nothing in the fact that the existing power of the circuit courts as to the subjects 
of jurisdiction transferred to the new court should be deemed as an enlarging of those 
powers, and (2) by the provision that nothing in the transfer of the enumerated powers 
to the Commerce Court should be considered as limiting or abridging the existing juris- 
diction possessed by the circuit courts as to things and subject matters not embraced 
in the powers transferred, thus the two provisos again serving to make clear the legis- 
lative intent that the creation of a new body to exercise a portion of the existing judicial 
power should not in any way enlarge the power as existing or be implied as destroying 
or minimizing the general scope of the judicial power possessed by the circuit courts 
where such power was not embraced within the authority transferred to the new body. 

D. Because the act which created the court contained in its latter sections provisions 
amending sections of the act to regulate commerce which when rightly interpreted 
were manifestly adopted to make that act more consistent with the new situation 
resulting from the creation of the new court and utterly inconsistent with the concep- 
tion that that court had power not previously possessed by any court and the existence 
of which would serve to set at naught the whole system of interstate-commerce regula- 
tion. 

Some suggestion is made in argument concerning the alleged claim of constitutional 
right asserted in the petition filed below and which the court disposed of in the manner 
we have stated. But what we have said suffices to point out the fallacy which the 
contention involves, for the following reasons: If the claim of constitutional right 
concerned a subject which from its very nature and effect dominated the act to regu- 
late commerce and therefore was wholly independent of all questions of right or remedy 
created by or depending upon that statute, then the issue presented a controversy not 
cognizable in the Commerce Court, as it could not so be without violating the express 
reservation and restriction as to the general power of the circuit courts which we have 
just quoted. If, on the other hand, the constitutional question was involved in or 
depended upon the provisions of the act to regulate commerce that question in the 
nature of things was subject to the precedent action of the commission on the subjects 
committed to it by the act to regulate commerce and as to which the court had juris- 
diction alone to act in virtue of a prior affirmative order of the commission. 

The general considerations which we have stated establish the error committed by the 
court below in holding that it had jurisdiction over the claim of the Proctor & Gamble 
Co. to recover on a money demand based on the illegality of the demurrage charges 
alleged to have been wrongfully exacted by the railroad companies. Through abun- 
dance. of precaution, we, however, say that wholly irrespective of the general consider- 
ations stated we think the conclusion of the court as to its possession of jurisdiction over 
the subject referred to was clearly repugnant in other respects to the express terms 
of the act. 

As it follows from what we have said that the court below erred in taking jurisdiction 
of the petition, it results that our duty is to remand the cause to the court below with 
directions to dismiss the petition for want of jurisdiction. 

And it is so ordered. 


The decision of the United States Commerce Court in the case of 
the Procter & Gamble Co., petitioners, v. United States et al., respond- 
ents, Interstate Commerce Commission, intervening respondent, is 
set out below: 


{United States Commerce Court. No. 9—May Session, 1911. The Procter & Gamble Co., petitioners, v. 
United States et al., respondents; Interstate Commerce Commission, intervening respondent. On 
final hearing. ] 


For opinion of Interstate Commerce Commission, see Interstate Commerce Com- 
mission Report, 556. 

Mr. George H. Warrington, for the petitioner. 

Mr. James A. Fowler, Assistant to the Attorney General, and Mr. Blackburn Ester- 
line, special assistant to the Attorney General, for the United States. 

Mr. P. J. Farrell, for the Interstate Commerce Commission. 

Mr. Edward Barton, with whom Mr. M. R. Waite was on the brief, and Mr. R. 
Walton Moore, for the respondent carriers. 

Before Knapp, Presiding Judge, and ArcHBALD, Hunt, CArRLAND, and Mack, 
Judges, 


JURISDICTION OF COMMERCE COURT. 15 


[July 20, 1911.] 
ARCHBALD, Judge: 


The Procter & Gamble Co., the petitioner, is engaged in the manufacture of soap 
and the refining of cottonseed and other oils, and owns large industrial establishments 
at Ivorydale, Ohio, Port Ivory, N. Y., and Kansas City, Kans. In all its plants it 
has and maintains private railroad tracks for the purpose of receiving cars from the 
interchange tracks which connect it with the respondent railroads. At two of the 
places named it owns and employs its own locomotives and itself performs the entire 
switching of cars, and at the other the switching is performed by the railroads under 
contract, which is paid for separate and apart from the transportation charges. In 
every instance the tracks are owned by the company, are on its own land, and the 
railroads have no interest or control over them. 

The Procter & Gamble Co. is also the owner of 532 oil-tank cars, which it has pur- 
chased at a cost of about $500,000. These cars are necessary for the transportation 
of the oils, grease, and other like commodities used by the company in its business 
and were purchased by it in relief of the railroads, which were and are not prepared 
to furnish them. These tank cars, when loaded by the petitioner at its several estab- 
lishments, are tendered to the connecting railroads for shipment and are hauled to 
their various destinations at the regular published rates for the respective commodi- 
ties with which they are loaded. The use of these cars is confined to the petitioner’s 
business, and in consideration of the petitioner’s furnishing them an allowance is 
made by the railroads of three-quarters of a cent a mile per car for each mile that it 
is hauled, this allowance being in accordance with the published tariffs of the rail- 
roads with respect to the movement of all private tank cars. 

Until the adoption of the rule set forth below, no demurrage was ever charged by 
any of the respondent railroads for delay in unloading private tank cars while standing 
on the private tracks of the owner. But beginning in February, 1910, and following 
that, the railroads have published, as part of their so-called ‘‘ uniform demurrage code,”’ 
the following rule, which is the subject of this controversy: 

‘Private cars while in railroad service, whether on the carrier’s or private tracks, 
are subject to these demurrage rules to the same extent as cars of railroad ownership. 

‘“Empty private cars are in railroad service from the time they are placed by the 
carrier for loading or tendered for loading on the orders of the shipper. 

‘‘Private cars under lading are in railroad service until the lading is removed and 
the cars are regularly released. 

‘Cars which belong to an industry performing its own switching service are in 
railroad service from the time they are placed by the industry upon designated inter- 
change tracks, and thereby tendered to the carrier for movement. If such cars are 
subsequently returned empty, they are out of service when withdrawn by the industry 
from the interchange; if returned under load, railroad service is not at an end until 
the lading is duly removed.”’ 

The demurrage rules, of which this is a part, were prepared by a committee of the 
National Association of Railway Commissioners, composed of a representative from 
each State having a railroad commission and a member of the Interstate Commerce 
Commission; and were adopted by the association in convention and later approved, 
although not prescribed, by the Interstate Commerce Commission. 

After the publication of the rule in controversy, but before it had gone into effect, 
the Procter & Gamble Co. made complaint to the Interstate Commerce Commission, and 
sought to have the rule set aside, in so far as it permitted the railroads to make a 
demurrage charge against the private cars of the company after they had been deliv- 
ered to it and were standing on its own private tracks. But after a due hearing the 
commission dismissed the complaint, and the respondent railroads are now exacting 
demurrage charges in accordance with the provisions of the rule. 

The proceedings in this court are brought to set aside the order of tlhe commission 
dismissing the complaint and refusing relief, the allegation being made that the rule, 
in so far as it provides that privately owned cars under lading on private tracks are in 
railroad service, and so subject to a demurrage charge until the lading is removed, is 
unjust and unreasonable and deprives the company of the right to use its private cars 
on its private tracks for its own purposes unless demurrage is paid therefor, thereby 
permitting the respondent railroads to deprive the company of its property without 
due process of law, in violation of the fifth amendment to the Constitution and the acts 
regulating interstate commerce. The prayer of the petition is that the order of the 
commission dismissing the complaint may be annulled and the respondent railroads 
enjoined from collecting the demurrage charge, and that they may be further required 
i bales to the petitioner the sums which they have wrongfully collected from it under 
the rule. 


16 JURISDICTION OF COMMERCE COURT. 


The United States moves to dismiss the petition on the ground that this court has 
no jurisdiction in the premises; or that, if it has, no cause of action is made out which 
entitles the petitioner to relief.. And in this motion the Interstate Commerce Com- 
mission and the several railroads which have been summoned as respondents, join. 

The jurisdiction of this court is denied on the ground that the petitioner is a shipper, 
and the Interstate Commerce Commission haying merely dismissed the complaint 
which was made to it, and granted no affirmative relief, that there is nothing in the 
order of dismissal which it entered that affords any basis for action here. Or, in other 
words, that it is only the carrier against which an order is made in favor of the shipper 
that can bring the case for review into this court, the shipper being coneluded by the 
action of the commission, whatever it may chance to be. This is a serious question, 
which merits careful consideration and is not altogether easy to solve. 

By the act by which the Commerce Court was created (act June 18, 1910; 36 Stat., 
539) it was given ‘‘the jurisdiction now possessed by circuit courts of the United 
States and the judges thereof”’ of, inter alia, ‘‘cases brought to enjoin, set aside, annul, 
or suspend in whole or in part any order of the Interstate Commerce Commission.’’ 
It was also therein further provided that ‘‘in all cases within its jurisdiction the Com- 
merce Court and each of the judges assigned thereto shall respectively have and may 
exercise any and all the powers of a circuit court of the United States, and of the judges 
of said court, respectively, so far as the same may be appropriate to the effective exer- 
cise of the jurisdiction hereby conferred;” and, conversely, that nothing in the act 
should be construed as enlarging the jurisdiction at the time possessed by said circuit 
courts, or the judges thereof, thereby transferred to and vested in the Commerce 
Court; the jurisdiction, however, so far as conferred, to be exclusive, and so far as 
not conferred being reserved. The question, then, is whether upon any recognized 
ground of equity practice the present petitioner, under the law as it previously stood, 
would have had the right to apply by bill to a circuit court of the United States to 
set aside the action of the Interstate Commerce Commission dismissing its complaint, 
and to enjoin the enforcement by the railroads of the demurrage charge which in 
effect was thereby approved. 

It is of no significance in this connection, nor of any assistance in the solution of the 
question, that suits in this court to enjoin,-set aside, annul, or suspend any order of 
the commission are required to be brought against the United States. It is just as 
consistent that the United States should be the respondent in cases brought for this 
purpose by the shipper as in cases brought by the carrier, the Government in each 
case standing for the order of the commission which it is thus appointed to justify and 
defend. 

Neither does it detract from the jurisdiction of this court that, under the law as it 
previously stood, the venue of suits brought in the circuit courts of the United States 
against the commission to set aside its orders was fixed in each case in the district 
where the carrier against which the order was made had its principal operating office, 
jurisdiction to hear and determine such suits being in terms vested in the courts of 
such district. (Act June 29, 1906, sec. 16, 34 Stat., 592.) This was a favor to the 
carrier adversely affected by the order. And according to the law at the time, the 
commission being the respondent, provision had to be made for jurisdiction over it 
by the courts of the various districts throughout the country where it was lable to 
be summoned. It was to meet this situation that jurisdiction was given in terms 
over suits of the character mentioned to the courts of the district where the carrier 
against which the order was made had its principal office. Nothing more was in- 
tended, and nothing more is to be made out of this provision of the law. Certainly 
nothing adverse to possible suits by others than the carrier is to be thereby implied. 

The real argument against the right of suit, where the complaint of a shipper has 
been dismissed, is that the denial of relief by the commission is not an order of which 
the courts can lay hold. Such an order, it is urged, must be one specifically requiring 
that something shall or shall not be done before this is the case. In Peavey v. Union 
Pacific Railroad (176 Fed., 409) it is said; ) 

‘‘A careful search of the interstate commerce act discloses no limitation of the 
parties who may maintain suits to enjoin, set aside, annul, or suspend an order of the 
commission, to those who were parties to the proceedings before it, upon which 
the order was based. The proceeding in court is not an appeal; it isa plenary suit in 
equity. * * * The determination of the question, what parties may maintain 
such suits is left by the * * * act to the general rules and practice in equity, 
and under themany party whose rights or property are in danger of irreparable injury 
ree a eee order of the commission may appeal toa Federal court of equity 
or relief.’’ 

But there was an order of the commission in that case which prohibited the railroad 
from paying to complainants, and others who were owners of elevators located upon 


eh 


JURISDICTION OF COMMERCE COURT, 17 


their lines, any compensation for the elevation of grain in transit, so that the law was 
unquestionably met so far as there being an order is concerned; and the case therefore 
decided nothing more than that the right to resort to the courts is not confined to the 
carrier, but extends to everyone injuriously affected by the order of the commission, 
even though not a party to the proceedings before it 1n which the order was made. 
To that extent, but no further, it is pertinent here. Putting aside, however, for the 
moment the provisions of the statute, and considering the case as though it had not 
been passed, it is clear that a shipper would have been entitled, in one form or another, 
to redress in court against an unjust and unlawful charge or practice imposed by a 
carrier, such as the one here is alleged to be. 

And it would have been permissible therefore for the Procter & Gamble Co., denying 
the right of the carrier to make this demurrage charge, to have refused to pay it and 
‘compel the carriers to bring suit therefor; or, in view of the complications to which 
this would give rise, to say nothing of the multiplicity of suits with different carriers 
which would be likely to ensue, and in order to settle the matter as to all parties once 
for all, it would have had the undoubted right to go into a court of equity by bill and 
have the legality of the practice tested, and, if found to be unjustified, enjoined. 
(Donovan v. Pennsylvania Co., 199 U. 8., 279.) Indeed, the only question would 
seem to be whether this was not the course which the company, even considering the 
provisions of the statute, was required to pursue, the legality of the demurrage charge 
being the only thing involved, and that being a matter for the courts and not for the 
commission to decide. (Hite v. Central Railroad of New Jersey, 171 Fed., 370. See 
also Danciger v. Wells, Fargo & Co., 154 Fed., 379, and Langdon v. Pennsylvania R. R., 
186 Fed., 237.) It was decided, however, in Texas & Pacific Railway Co. v. Abilene 
Cotton Oil Co. (204 U.S., 426) that redress by a carrier against an unjust and unreason- 
able rate must be sought in the first instance by proceedings before the commission, 
and that only after that could an action be maintained against the carrier for repara- 
tion based on the result. F 

This conclusion was reached, and the common-law right of action otherwise existing 
held to be abrogated by implication, in view of the system established by the enact- 
ments with regard to rate regulation by the Interstate Commerce Commission, and 
as necessary to the efficiency of that system, which otherwise would be subverted 
and made nugatory. And this was repeated in Baltimore & Ohio Railroad v. Pitcairn 
Coal Co. (215 U. 8S., 481), where it was held that, for the correction of an unequal 
distribution of cars, a shipper was similarly required to go to the commission, and 
could not in advance of its action seek to remedy by mandamus the discrimination 
alleged. And Morrisdale Coal Co. v. Pennsylvania Railroad (183 Fed., 929) also is to 
the same effect. But if that be so, there can be no serious question as to the pro- 
priety, if not the necessity, for the present petitioner going first to the commission to 
have determined whether the demurrage charge in controversy was a just and reason- 
able requirement. And it can not be that the implication by which this is brought 
about is to be carried so far as to make the action of the commission conclusive where 
relief is denied. There is no such compelling necessity in order to save the system; 
nor is the statute to be construed as requiring exclusive resort to a tribunal where the 
rights of the party can be only partially determined at the sacrifice of other rights 
which the courts of the land are appointed to consider and defend. 

This is not to deny that in questions cf fact, or where judgment or expediency 
is involved, the action of the commission in denying relief, the same as in granting 
it, may not be final. But where, as here, it is not the amount that is in dispute— 
$1 a day per car being recognized as reasonable if there is to be any charge—but the 
right of the carrier, under the circumstances, to make any charge at all, it is not to 
be implied, unless there is no escape from it, that the decision of the commission 
adverse to the shipper is to foreclose the question. And while the dismissal of a 
complaint by the commission in a case like the present one may not in strictness 
be an order, in that it does not require or prohibit that anything shall or shall not 
be done, it is so in substance and effect, in that, by refusing to interfere with the 
practice or the charge complained of, it virtually approves it and makes it oper- 
ative. If it was required by the act to hold that a court could not interfere with 
such an order, however confiscatory to the shipper it might be, the shipper being 
thus without legal redress, the act might well be declared unconstitutional as wanting 
in due process of law. 

The action of the commission, if to be given any force, having thus the effect of an 
adverse decision with respect to the question involved, must be regarded, even though 
negative in character, as an order within the meaning of the statute, which the courts 
may enjoin or set aside if legal or equitable grounds for doing so are found to exist. 
The petitioner therefore correctly came into this court, as it could previously have gone 


53205—12——2 


18 JURISDICTION OF COMMERCE COURT. 


into a circuit court of the United States—the requisite amount being involved and 
the case being one arising under the Federal law—to have the action of the commission 
dismissing its complaint set aside and the demurrage charge disallowed, if that should 
be the conclusion reached with regard to it, either by direct decree or by remanding 
the case to the commission with directions to sustain the complaint. 

But while the jurisdiction of this court in the premises is thus sustained, we are 
forced to conclude, upon a consideration of the merits, that the demurrage charge in 
controversy was lawlully imposed, and that the petitioner therefore has no just ground 
for complaint. The argument against the charge proceeds upon a misconception. 
Baldly put, as an exaction for the use by the shipper of his own cars while standing on 
his own private tracks, the right to it might well be questioned. Neither is it to be 
sustained as compensation to the carrier for an additional] service not covered by the 
transportation charge—that is to say, for the storage of the freight with which the cars 
are loaded—that storage being in the cars and on the tracks of the shipper and not in or 
on anything which the carrier has supplied. (In re Demurrage on Private Tank Cars, 
13 Int. Com. Com. Rep., 378, 381.) It is difficult also to see how the imposition of 
demurrage on private cars for delay in unloading is necessary to prevent unjust dis- 
crimination, the shipper who is able to provide such cars having an advantage over those 
who can not, which this regulation is supposed to correct. 

The ability to own private cars is a mere matter of capital which the undue with- 
holding or the prompt unloading and releasing of them can hardly affect, and the 
difference in financial circumstances is an advantage which the law can not under- 
take in this way to overcome. (Peavey v. Union Pacific Railroad, 176 Fed., 409, 
419.) It may not be consistent, also, with the exaction of this charge that provided 
only the cars are unloaded within the free time allowed they may be reloaded and 
retained by the shipper indefinitely without any claim being made for demurrage. 
If this, which is the practical construction of the rule, is to be accepted as the correct 
one, it throws serious doubt on its validity, the real ground on which the charge is 
to be sustained being the right of the carrier to have the cars promptly returned into 
service, which this has the effect to undo. Nor is the condition of the cars, once 
they have been delivered to the shipper, whether loaded or unloaded, of any concern 
to the carrier, except as an end to getting them back into use again. And there is 
also an apparent inconsistency in holding inbound cars liable to demurrage after they 
have been delivered and are on the tracks of the owner until they are unloaded, bar- 
ring the free days, and yet in imposing 1t on outbound cars without regard to when 
they are loaded, only from the time they are placed on the interchange tracks. The 
justification of the rule is therefore to be sought in something outside of all this, upon 
a determination of the real principle involved. 

It is not necessary to decide whether a railroad can refuse or be required to haul 
private cars. Whatever may be its duty in this regard, it is conceded that such terms 
may be imposed as a condition to hauling them as have a reasonable relation to the 
transportation service in which they are employed. And this concession necessarily 
sustains the present charge. In using these cars, whether as supplementary to or in 
place of their own, the railroads are entitled to require that there shall be a reasonably 
dependable supply, and that such cars shall not be withdrawn at will to serve the 
private purposes of the owners, but shall be kept in active and steady use, and to that 
end that they shall be put on a footing in this respect with other cars. The interest 
of the carrier that this should be the case is clear. For the time being these cars 
become a part of the rolling stock of the road, taking the place of those which the 
carrier would otherwise be called upon to supply. It may be that there are some 
kinds of these cars, such as the tank cars here, which the railroads do not keep on 
hand, but rely on each shipper furnishing his own. But that does not change the 
principle involved. In one form or another, the carrier is bound to supply the neces- 
sary transportation facilities for handling every kind of freight; and this, not to 
one shipper only, but equally and without discrimination to all. And it is put ata 
disadvantage and an extra burden upon it imposed if it can not be assured with regard 
to the supply of cars on which it can depend, but is liable to run short or be in excess 
according as private cars are released or withheld. 

This the demurrage charge which is complained of is calculated to overcome, and 
therefore may justly be imposed. The purpose of demurrage is to force the cars back 
into use. Delay is made expensive, so that it may be an object to the shipper which 
he can not afford to disregard. Its exaction from private cars, the same as others, is 
therefore neither arbitrary nor unjust. 

Nor is it violative of the owner’s rights. It is simply a condition to the acceptance 
of his cars, which, for the reasons given, the carriers have found it necessary to impose, 
and with which therefore he must expect to comply. Presumably the use of these 
cars operates to his advantage, or he would not be at the expense of supplying them. 


JURISDICTION OF COMMERCE COURT. 19 


But he can not expect that the advantage shall be all on one side. And it having 
been found by experience that demurrage on private, the same as on public, cars is 
a necessary transportation regulation, which is justified on principle, the carriers were 


within their rights in imposing it by the rule in question, and it must therefore be 
sustained. 


The petition will be dismissed on the merits with costs. 
Knapp, Presiding Judge, concurring: 

The conclusion reached in this case is undoubtedly correct, and I disagree with the 
foregoing opinion only so far as it questions the right to enforce the demurrage rule in 
controversy for the purpose or in aid of preventing undue preference and advantage 


to the owners of private cars. The commission based its decision in part on this 
ground and in my judgment was right in so doing. 


Thereupon the committee proceeded to the consideration of execu- 
tive business. 


FINI INGN 


3 0112 062006843 














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182.8 
1.559¢ 
$2.85 


21.6 
2.36¢ 
$0.51 


58.3 
3 47g 
$2.02 


39.7 

3.17¢ 
$1.26 
129.0 


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3.17¢ 
$1.43 
119.6 

21.6 


273 
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16 9415 
4650 
$ 66 313 


395 
395 


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3.25¢ 
$2.55 


46.8 

2.99¢ 
$1.40 
25979 

2A 


17 484 
4603 
$64 799 


423 
424 


441 
269 
445 
852 
812 
8565 
541 
399 
580 
O76 


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1te2 910 





272.4 
1.028¢ 
$2.80 


Sel 
1.69¢ 

$0.43 

142.6 


3.20¢ 
$4.56 


140.5 
3.19% 

$4.48 

82.2 

15.5 


144, 4 
2.76% 
$3.99 
88.2 
16.2 


WESTERN DISTRICT 


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3476 
3 732 
7 208 


70 352 
1126 229 





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19. Revenue passenger-miles per car-mile 


? 


Oupo Ne 


9. 
10. 
11. 


. Freight revenue 
. Number of revenue passengers carried: 


ITEM 


AGGREGATES 
Miles of road operated at close of month: 
Freight service 
Passenger service # 


. Number of revenue tons carried. ...... .~ 


Number of revenue tons carried one mile (thous) .. 


6-01. Commutation passengers®. . .. ..- . 
6-02. All other passengers 
6-03. Total 


. Number of revenue passengers carried one mile: 


7-01. Commutation passengers’... ... . 
7-02. All other passengers 
7-03. Total 


. Passenger revenue: 


$01. Commutation fares” 
8-02. All other fares 
8-03. Total 


Passenger service train revenue 1/..... . . 
Passenger train-miles 
Passenger carrying car-miles 


AVERAGES 


FREIGHT TRAFFIC: 


12. Miles per revenue ton per road 
13. Revenue per ton-mile 
14. Revenue per ton per road 


CoMMUTATION PASSENGER TRAFFIC:* 


ALL 


15-01. Miles per passenger perroad. . .. . - 
16-01. Revenue per passenger-mile 
17-01. Revenue per passenger per road... . 
Orner PassENGER TRAFFIC: 
15-02. Miles per passenger per road 
16-02. Revenue per passenger-mile 
17-02. Revenue per passenger per road. . . . 


Tora, PASSENGER TRAFFIC: 


Ope Ne 


9. 
10. 
11. 


FREIGHT TRAFFIC: 


ComMUTATION PasseNGER TRAFFIC:” 


Ast OrHeR PassENGER TRAFFIC: 


Torat PasseNGER TRAFFIC: 


. Number of revenue tons carried 


. Passeng: r revenue: 


15-03. Miles per passenger per road 
16-03. Revenue per passenger-mile 
17-03. Revenue per passenger per road. . . . 
18. Revenue passenger-miles per train-mile. . . 
19. Revenue passenger-miles per car-mile 


ITEM 


AGGREGATES 
Miles of road operated at close of month: 
Freight service # 
Passenger service # 


Number of revenue tons carried one mile (thous) . 
Freight revenue 
Number of revenue passengers carried: 
6-01. Commutation passengers”: 
6-02. All other passengers 
6-03. Total 


_ Number of revenue passengers carried one mile: 


7-01. Commutation passengers’. . . . .. . 
7-02. All other passengers... . es 

a nt 
8-01 Commutation fares” 
S02. Alliottierfares' ss see te se 
8-03. Total 


Passenger service train revenue 1/ 
Passenger train-miles 
Passenger carrying car-miles 


AVERAGES 


12. Miles per revenue ton per road 
13. Revenue per ton-mile 
14. Revenue per ton perroad. ........ 


15-01. Miles per passenger perroad. .... . 
16-01. Revenue per passenger-mile 


17-01. Revenue per passenger per road 


15-02. Miles per passenger perroad. .... - 
16-02. Revenue per passenger-mile 


17-02. Revenue per passenger per road 


1957 1956 1957 1956 1957 
221596 222014 5 867 5 890 22 373 22447 22 425 224 
4 
113 229 116 643 3417 3517 11083 11189 9368 5544 23 en 
es 
1490 024 648} 1533 614600 38122736 40 667 877) 242791724) 2562234 
ore cae 984 369950935 5 360 306 5 717034 47 290 561 50 380 aoe ac Tey sas ae eos FSi ee 638 372 
$52 58 916/1$5 130 777757] $32172 252| $133 347 447| $774 669 585| $777 735 704) $949 962 861] $923 970021| $1 556 804 698 
143 010 364 145 009 403 22 252 386 22 538130 26 700 088 ypc cele bir tel 7 
99 461 306 106 105258 12 078720 12 680551 13 942 382 15 433016 44 686 $60 Ser ose 190 707 402 
242 471 670 251114 661 34 331106 35418681 40 642 470 43003187 98 161978] 101 828 847 173 135554 
2618113 521] 2633220752| 479939736| 484440152| 510516753) 525026712 13527 
12 681 199 986/13 626139 891} 850949145| 916 313 735)1 778 796094/2 039 552 345 ces 680 1asle 7e4 eeiatoe 5 236 ag8 387 
15 499 313 507/16 461 360 64 3\1 330 888 881/1 400 753 887/2 289 312 847|2 564 579 057/3 798 032 877/353 699 309 410] 7 418 234 605 
$65 286532 $62 034 696 9955724 8759397 12 454661| %12296512 
374 483127 379086539 at 761002 ; 8 061184 60060168| $65 013099 {23 712 382 os 609 370 hie $32 522 
439 769659 441121235 38716726 36 820581| $72 514 829 77 309 611| $125 794381) $122 492 813| $237 025936 
$695 039 237| §710678 835 50 447779 48 963.483) $114 902 116| $123 771 630!/ $169 206 726) 7126: : 
162 131 580 170 671463 ‘ 9 539733 ‘ 9 890 853 24 833601 26 532053 . 29 637 139 sy 508 505 Se aie 473 
651 249360 915 206 607, 44 295 302 45 896749| 125 836978| 140072249] 183 737 896| 194308 826 353 8701706 
243.2 241.2 140.6 140.6 194.8 196.6 176.3 175.9 181.3 
1.437¢ 1.387¢ 2.466¢ 2.332% 1.638¢ 1.5442 1.578¢ 1.498¢ 1.646¢ 
$3.49 33.35 $3.47 $3.28 3.19 $3.04 $2.78 $2.63 $2.98 
19.7 19.5 21.6 21.5 19.1 19.0 21.2 20.9 20.7 
bs 2.19¢ 2.07¢ 1.81¢ 2.44¢ 2.34¢ 2.48¢ 22s 2.38¢ 
$o. $0.43 0.45 $0.39 $0.47 0.45 $0.53 49 $0.49 
127.5 128.4 70.5 vl! 127.6 132.2 59.7 58. 4g 
2.95 2.78% 3.38¢ 3.06% 3.38% 3.19% 3.662 3 hog ere, 
$3.77 S\by 2.38 $2.18 532: $4.21 $2.19 $2.01 $2.64 
63.9 65.6 38.8 39.5 56.3 59.6 38.7 38. 42.8 
2.84¢ 2.68¢ 2.91¢ 2.63¢ 3.17¢ 3.01¢ 3.31¢ 3 ibe 3.20¢ 
$1.81 $1.76 $1.13 1.04 1.78 $1.80 $1.28 $1.20 $1.37 
93.6 36.3 159-3 ee oe 2a 128.2 122.2 115.9 
; “ : : : 20.7 20.1 21.0 
EASTERN DISTRICT 
INCLUDING SOUTHERN REGION NORTHWESTERN REGION CENTRAL WESTERN REGION 
POCAHONTAS REGION 
58 563 58675 37 214 37 247 44779 44921 32; 00 ao eo D 7340 
27954 28 7560 18102 18972 22 218 22570 29805 30577 5150 
763 614760 750 981256| 258 816771| 273637 863| 165 624740) 157196738) 184 767219) 190 849 720 1158 
153 462 617| 155 772787| 52233040) , 54545 325 41504304) 42 764 $94) 82 254539) 82636 542 32 870 684 
2 273 753 598/$2 222 068 921] $738 775781 $745 064 548] $593 575 3491$577 903 6871 151 869 853h1 126 9355156) $447 584 335 
102 475060| 104537905| 14685085} 151534935 23255691) 12964596} 12689452) 12526 805 6 890 
72 871444 78040494 6 824474 7236405 7 907 804 7944619 9 559241 10371577 2298 343 
175 346 510 182578399 21 509559 22 389 898 21 061 695 20 929 215 22 £48 673 22 698180 2 305 233 
2122 989764| 2145626356) 188928826, 190084610| 272932725) 266 047 482| 233193306| 231396244 68 900 
5 612 428 482| 6 061 714 757|1 853 O77 446|/1 950 237 9435/1129 3968 4501 256 542 200|3 435 992 734)3 671 713128 650 302 874 
7735 418 246| 8&8 207.341 11 3/2042 006272/2 140 522 553\1 402 331175]1 502 589 68213 669 186 04015 903 109 377.2 650 374 774 
50 513 658 7963962 5022166, .$4666275| $5 268455} $5128266) 84481307) | 273 134 $946 
gice 483 455 i 459199 re 888891) $62 873555 26 503683) $27 485913) $61 517 251 a ipo ST OER 54a 
$246 997113 46423161] $57 911057) $57 539 830 314 772138 32614179 85 998 558 86 959 076 17 090 793 
51 437761 357 057 983 96 256961] $98517538| $58 926985 $1149 322| $151 744015] $156 344990 $36 673 515 
warts 277 325 ‘ 72722452 35 465 395 24240399 19 490 598 20 897092 39 196959 40 848 654 11 701 303 
376 454077 403 675 941] 132 391992] 140415287 85 123 436 91 567689| 210028664) 226 563193 47 251191 
196.9 201.8 199.3 250.6 272.0 4S 2 433.0 
1. 482g 1.426¢ Lwibg 1.366¢ 1.430¢ 1.351¢ 1 hoog 1 aehe Fated 
$2.96 $2.81 $2.85 $2.72 $3.58 3.68 $6.23 $5.90 $3.99 
20.7 20.5 12.9 12,5 20.7 20. 18.4 18. 
2.38¢ 2.24¢ 2.66 2.45¢ 1.93¢ 1. 93¢ 1.92¢ Leg 1 39g 
$0.h9 $0.46 0.34 $0.31 0.40 0.39 $0.35 $0.35 $0.14 
77.0 77.7 271.5 269.5 142.8 155.6 359.4 354.0 
3.50¢ 3.27¢ 2.85% Seed 2.35% 2.22¢ 2.37 eater wt 
$2.70 2.54 7 75 $7.31 3 35 $3.46 8.53 $7.97 $724 
Ady 1 45.0 94.9 95.6 66.6 164.9 172.0 282.1 


15-03. Miles per passenger per road 
16-03. Revenue per passenger-mile 

17-03. Revenue per passenger perroad ... . 
18. Revenue passenger-miles per train-mile. . . 













UNITED STATES 








INTERSTATE COMMERCE COMMISSION 
BUREAU OF TRANSPORT ECONOMICS AND STATISTICS 


REVENUE TRAFFIC STATISTICS OF CLASS I RAILROADS IN THE UNITED STATES 


Compiled from 109 reports of revenue traffic atatistices representing 114 railroads 


(SWITCHING AND TERMINAL COMPANIES NOT INCLUDED) 


FOR SEVEN MONTHS ENDED WITH JULY 1957 AND 1956 


NEW ENGLAND REGION 








GREAT LAKES REGION 


CENTRAL EASTERN REGION 


























Represents an average of the mileage reported at the close of each month within the period, 
1/ Includes dining and buffet service. 


Includes Commtation and Multiple Fice. 











EASTERN DISTRICT 





1956 


NYG, AnH ARF NVNS OAH 

NUQ NOW A2OO ONY Hoo NY 
NPP BEO NN OFM WOU FO 
MAN, OOW WANOH NRO BPA ON 
NFR OOH VOH FRO Noo 40 
fre, TUM SAO WOO NHKW ANH 


115.1 
20.7 


SOUTHWESTERN REGION 











Statement No. M-220 (OS-D) 


POCAHONTAS REGION 







146 
$416 


oo 


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WESTERN DISTRICT 





27462 125 819 
15 744 67173 
149023 462 593117 
229 790 156 629 327 
807 445] $2193 029537 
6 606 25 850 213 
512363 19 765 388 
518969 45 615 601 
66060 506 194931 
931 863| 5215 694058 
957 923] 5721 888 989 
$2039 $2 750 708 
583950 125 110 781 
584989 134 861 489 
809002| $247 344515 
162 866 70 388 860 
784697 342 403291 
282.5 338.6 
1.340¢ 1.400¢ 
3-79 $4.74 
10.0 19.6 
1.57¢ 1.93¢ 
$0.16 $0.38 
281.8 263.9 
2.48¢ 2.40¢ 
$7.00 $6.33 
281.1 125.4 
2.48% 2.36¢ 
$6.98 $2.96 


$2163 


1956 


469 
159 


25 
20 
46 


497 
5 616 
6113 


af? 


137 


$255 
73 908 
370915 


Ne 
2355 
$4.61 


19.7 
1.89% 
$0.37 


269.6 
2.27¢ 
$6.13 


132.5 
2.2hk¢ 
$2.97 
82.7 
1 . 


GPO 931303 


j ma 3 : * 
, 


INTERSTATE COMMERCE COMMISSION 


Subject to revision BUREAU OF TRANSPORT ECONOMICS AND STATISTICS 


Statement No. M-220 (OS-D) 5 
REVENUE TRAFFIC STATISTICS OF CLASS I RAILROADS IN THE UNITED STATES JULY 1957 


Compiled from 109 reports of revenue traffic statistics representing114 railroade 


(SWITCHING AND TERMINAL COMPANIES NOT INCLUDED) 





FOR THE MONTH OF JULY 1957 AND 1956 








































































































ITEM UNITED STATES NEW ENGLAND REGION GREAT LAKES REGION CENTRAL EASTERN REGION EASTERN DISTRICT } POCAHONTAS REGION 
1957 1956 . 1957 1956 1957 1956 1957 1956 195? 1956 THE LIBRARY OF TH! 
SS See LJ} ba Eth Y ; 
AGGREGATES : Mo Livi 
Miles of road operated at close of month: 
Te. Freight tetviee qs 221 524 221929 5 867 5 889 22364 22431 22424 22438} 50 652 50758 898 7898 
Jono. P ASSEN PCY BEFVICES os. esi es ee lie 625 115 566 3363 3517 11068 11 225 9 4 9581 23705 24 323 890 4119 
3. Number of revenue tons carried... . . . . . 215247069) 188122957 4694990 50558679 3359531 2908454 4 8147 87 86 457 215 72 288298 742| 17509246 
4. Number of revenue tons carried one mile (thous) . $0125053 46 586i16 616 601 691 885 6130 656 73 964 464 8 386 5 $4 973 740 15134130 13630089 151 4736034 
vy a os eae ee Ss 8734629925! $670305 467) $15684027| $16 234 011| $103697317| $94 250661| 29 327 210] $108 711936| §248706554| $219196608 397| $48987279 
. Number of revenue passengers carried: | 
6-01. Commutation passengers”. . . . .. . 19 503307 19874920 2928009 3154 305 3508075 3695 1223 7333 9 7389166 13 769323, 14238594 219 71606 
6-02. All other passengers... ..... 15956740 16690575 1789 667 1949002 2163748 2309759 7057 486 7171 876 11010 904 11430637 300 375051 
Aa a eer ee ae 35 440047 36565495 4717 676 5 103 307 5671 823 6 004 88é 14 390 5 14561042 24780 224 25669 231 519 382657 
. Number of revenue passengers carried one mile: 
7-01. Commutation passengers*. . . . . - . 393132 670 401051 040 66129 642 70 348 840 68 5093714 TH eDO Gee 151 eve 7} 159645575 291911606 303 245037 309 188405 
ses el cits Set eae ee A Seee, oe Sie seas een aee nee ne 284 704 662 329081 894] 414900 3 15 es 2.19 630159103 EOL oes See a eS eae 
SOUR en ete aaa ea ee ge .) 21 46 353 214033 4027532516). S72 1573 c@) 5 99794/) 1122070703 g 
. Passenger revenue: . 
8-01. Commutation fares... ...... #& 339 446 $5 804 396 $1417 856 $1 291784 $1774 7212 $1 730 520 $3 962 1 $3 769 646 $7 155268 $6791 950 44 $3179 
S02). All-other-fatesnpcss.uaares) a hue! ae t 2161315¢e2 63 342 O07 ts 478 864 ts 775 Beck $9075 787| $10170949 14 807 7 14520648 28 361 688 29175724 3179 1524013 
Sn ed Wel Cl Ee ae oe eee a ais 71152596 72146474 5896 720 5 FTrseos $10 850 508 a > 901 469 18769 928 = 18 290 294 ne fe tele oye By Ba i} 6 5 967674 $2 92 = 
. Passenger service train revenue Jf... = $205 563928) $108 926699/ §7332270| $7485830| $16320593| §$17823386| 24104428] $23772265| $47757289| $49061 462  $2460239 
= Passenger train-miles-..=.—- sess eon 24004 087 24849 51s 1416175 1474567 3600 004 3816444 4365 4 4480 428 9 381313 9771439 600 895 626 242 
. Passenger carrying car-miles .. . 1... . - 2351928502) 139922615 6535 437 6 976 820 18631504 20801 434| 26707 911| 27632859 51874 652 55 411115 3195081 3402998 
Sa = 
AVERAGES { z + 
FreicHt TRAFFIC: ; = 
12. Miles per revenue ton perroad ..... . 229.7 247.6 131.5 136.8 182.5 205.1 174.1 182.8 175.0 188.6 270.5 
13. Revenue per ton-mile .......... 1.4662 1.439¢ 2.5hh¢g 2.3469 1.691¢ 1.580¢ 1.542¢ 1.559¢ 1.643¢ 1.608¢ 1.034¢ 
14. Revenue per ton perroad. ........- $3.37 $3.56 $3.34 $3.21 $3.09 $5..24 $2.68 2.85 2.88 $3.03 -80 
CoMMUTATION PassENGER TRAFFIC:* 
15-01. Miles per passenger perroad. . . . . . 20.2 20.2 22.6 2253 1931-4 19.8 21.4 21.6 21.2 elas 24.8 
16-01. Revenue per passenger-mile . . . . . - 2.38¢ 2.20% 2.14¢ 1.84¢ 2.59% 2.36¢ 2.52¢ 2.36% 2.45¢ 2.24¢ 1.69¢ 
17-01. Revenue per pemeiger perroad.,... $0.48 $0.44 $0.48 $0.41 $0.51 $0.47 $0.54 $0.51 $0.52 0.48 42 
Aut OrHer PassENGER TRAFFIC: 
15-02. Miles per passenger perroad. . . . . .- 140.3 143.2 72.9 774 131.6 142.5 58.8 58.3 7504 78.6 146.8 
16-02. Revenue per passenger-mile . . . . . - 2.76¢ 2.65¢ 3.43¢ 2.97¢ 3.19% 3.09% 3.572 3.47¢ 3 hog 3.25¢ 2.77% 
17-02. Eee passenger per road. . . . $3.88 $3. 80- $2.50 $2.30 $4.19 40 $2. 2.02 2.58 2.55 06 
Torat PassENGER TRAFFIC: } 
15-03. Miles per passenger ea set are eee cs Cay are ee, eer gee Be 277 $533 a ae 
16-03. Revenue per passenger-mile . . ... . . : ; - 3% . 2 = a = 2 
17-03. Revenue per passenger per road. . . . $2.01 $1.97 $1.25 $1.13 $1.91 | $1.98 $1.30 $1.26 $1.43 $1. 3.99 
18. Revenue passenger-miles per train-mile. . . 109.5 112.3 138.9 150.0 98.1 105.4 1g ial 129.0 119.6 122.9 88.2 
19. Revenue passenger-miles per car-mile . . . 19.9 20.0 30.1 Slat 19.0 19.3 21.4 20.9 21.6 ehet 16.2 
EASTERN DISTRICT 
ITEM INCLUDING SOUTHERN REGION NORTHWESTERN REGION CENTRAL WESTERN REGION SOUTHWESTERN REGION WESTERN DISTRICT 
POCAHONTAS REGION 
AGGREGATES 
Miles of road ated at cl f th: 
ie oYaght arti ee a ee 5&6 550 58656 ar 20 5 7 44768 oa 673 53692 27328 27441 125 769 126046 
or Passenger SERVICE seis aes aL ea ee 27595 28442 18082 7 22216 434 780 30706 15150 25.26:9 67148 68409 
oe 
3. Number of revenue tons carried. ...... - 105 870 957 89 797 543 34780 927 ms 32589059 868 701 27108 968 15425 445 77595185 63 065 281i 
4. Number of revenue tons carried one mile (thous) - 20423281 18 366123 6693 794 7 cea ee be: 384 301 $ 11196 982 4650 snd coe 23007 976 21533218 
E gerake even Se has ee apenas $303096 951| $268155 687 $95 786036 GY fo) 146 502| $163 643 505 Toco 812) $335744938| $307 771 463 
. Number of revenue passengers carried: 

i er 14 246 200 2060493 0 1949 266 370 356 1637152 650 856 3667272 3476 360 
eo. der eve oe Rae = ae ce pbs 11805688 1079949 2 eae ee 482 Sos oe one so pe peo aa pane aa2 
Bae Lotaleaie ee eee 25131743 26051 688 3140442 2 Ei 839 i 8 

7. Numb f rev ars carried one mile: 
Til aannuurt een. | Soe o6T 90'0t? 305435 242 = 27 097s 5s 3| 41869389 540 519 492 6 500 580 73967408| 70352613 
7-02. All other passengers ........-.- 679 387 927 953.124594| 293125570 2 ee : aa OSS —_ ee — ots re: 2126 ere F a em He. ape Diab de - 
1 OPA Sa! Wn ea CRS PO ee re Pies 1171455 636] 1256558036| 320 222 923 5 2 i 11372 4 1196 581 — 
8. Passenger revenue: 
tatsos fared coe cee ots lan " 6795129 $753027 2 $806 977 126 436 o38 $92 h tobe. ir $1428 507 339 295 
02. aici tie iy pe Q die aoe Srireas 737 $7916 937 5 He 334089 o69 1453 726 $2972 916 691 $25959148 24525 486 
Riga Rotdlet a ce seat e . e 37 092 979 $37 494 566 $6671 964 7 6141066 195 581 764 $2973008 822 $25 387 655 25 864781 
ice i he En ed 51541720 13445 916 5 $10 064 409 786 729 509 $5622247 359 $419268385 3756654 
io: eee a Sey ie Ee pees: ene Ae 397681 : 3321746 9 2930291 865 538 209 1716904 765 10 700 733 11083 839 
11. Passenger carrying car-miles ......... 55069 933 58 614111 18070 404 S 15194251 321 230 241 7310484 215 58 787 965 61 891775 
AVERAGES 
Freicut TRAFFIC: 
12. Miles per revenue ton perroad ...... i hae  aeag arte gate, Renaod 
13. Revenue per ton-mile .......... 1. ° ° ° 429 
14. Revenue per ton perroad..-...... $2.86 $2.99 $2.75 $2.86 $4.88 
ComMMUTATION PASSENGER TRAFFIC:* " a8 va isiz 21,5 sta 
15-01. Miles per passenger perroad. .... . %, j ‘ ° . 
16-01. Revenue per passenger-mile . .... . 2.45¢ 2.2k4¢ 2.782 1.93¢ 1.90¢ 
17-01. Revenue per passenger perroad ... . $0.52 $0.48 $0.37 0.41 539 
Aut Orner PassenceR TRAFFIC: 
15-02. Miles per passenger perroad. .... . 77.4 80.7 271.4 164.8 301.7 
16-02. Revenue per passenger-mile .... . . 3.40¢ 3.22¢ 2.70¢ 2.17¢ 2.18¢ 
17-02. Revenue per passenger perroad .. . . $2.64 $2.60 $7.33 $3.58 157 
ToraL PassenGER TRAFFIC: 
15-03. Miles per passenger perroad. .... . 46.6 48.2 102.0 83.6 166.0 
16-03. Revenue per passenger-mile ..... . 3.17¢ 2.98¢ 2.71% 2.149 2.16¢ 
17-03. Revenue per passenger perroad ... . $1.48 $1.44 $2.76 $1.79 +59 
18. Revenue passenger-miles per train-mile. . . 117.4 120.8 96.4 98.2 108.0 
19. Revenue passenger-miles per car-mile . . . 21,3 21.4 Lev 18. . 





1/ Includes dining and buffet service. 
* Includes Commtetion and Multiple Ride 








ve © WwWeYs Yaw YU reer eT eh BY Pew i *sae FU LY vw FIT EeaQgs 
3816444 4365134 4480 428 9 381313 
20 801 434 26 707 912 27632 859 51874 652 
205.1 174.1 182.8 175.0 
1.580¢ 1.542¢ 1.559¢ 1.643¢ 
$3..24 $2.68 $2.85 $2.88 
19.8 21.4 21.6 | ee 
2.36¢ 2.52¢ 2.36¢ 2.45¢ 
$0.47 $0.54 $0.51 $0.52 
142.5 58.8 58.3 7594 
3.09¢ 3.57¢ 3 .47¢ 3.hag | 
$4.40 $2.10 $2.02 $2.58 
67.0 39.8 39\.7 45.3 
2.96¢ 3.28¢ 3.17¢ 3.17¢ 
$1.98 | $1.30 $1.26 $1.43 
105.4 731.1 129.0 119.6 
19.3 21.4 20.9 21.6 














44913 53673 53692 328 27441 125 769 126 046 
22434 29 780 30 706| 15150 15 269 67148 68 409 

| ; 
18471 868 28090701 27108 968 16915425 17484445 77595185 63 065 281 
5 730 384 118173012 11198982 4650 846 4603 852 23007 976 21 533 218 
$79 3268 146/$176 379 502| $163643505| §66313335| $64799812| $335 744938] $307 771 463 
1838 370 1717356 1637132 650| 856 3667272 3476 360 
1517770 1614483 1791 084 395 310 423541 3500590 3732 395 
3356140 3331839 3428 216 395 960 424 399 7167 862 7208755 
39618540 32091 519 30725 491 6 500 8 580 73 967 408 70 352611 
256 734 351! 704001 663| 746584779) 113552659] 122910076] 1063 294055] 1126 229 206 





